United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
response to this civil rights complaint Defendant Wexford
Health Source, Inc., filed a motion to dismiss or for summary
judgment. ECF No. 15. Plaintiff also filed a motion for
summary judgment (ECF No. 17) which is opposed by Defendant
(ECF No. 18). No hearing is necessary to determine the
matters pending. See Local Rule 105.6 (D. Md. 2018).
For the reasons that follow, Defendant's motion,
construed as a motion for summary judgment, will be granted
and Plaintiff's motion will be denied.
David Allen Reinhardt, an inmate committed to the custody of
the Department of Public Safety and Correctional Services and
formerly confined at Western Correctional Institution
(“WCI”),  alleges in his complaint that his request
for treatment and accommodation for his lower back pain was
not properly addressed by providing him a lower bunk
assignment and pain management measures including medication
and/or a cane. ECF No. 1 at 2. Specifically, he claims that
he filed a sick call slip on September 17, 2018, to be seen
for bottom bunk assignment because he was experiencing pain
and numbness in his right leg that extended from his hip to
his toe. Id. When he was seen two weeks later, after
filing another sick call slip, he was not seen by a provider.
While he did not receive a bottom bunk assignment order, he
did receive medication for the pain. Id.
February 17, 2017, an x-ray performed at Jessup Correctional
Institution (JCI) revealed that Mr. Reinhardt has
deteriorating discs in his back that are impinging on his
sciatic nerve, causing numbness and pain in his right leg.
Id. Mr. Reinhardt states he was told this
deterioration was a function of aging. Id.
relief, Mr. Reinhardt seeks monetary damages and a
declaratory judgment stating that he should be provided with
a bottom bunk and given proper pain management treatment, and
a policy should be in place requiring a provider to see
inmates for the first sick call request submitted.
Id. at 3.
sole Defendant named in the complaint, Wexford Health Source,
Inc. (“Wexford”), was the private medical care
contractor for the Maryland DPSCS, but as of January 1, 2019,
no longer serves in that capacity as the contract was awarded
to Corizon Health. In support of Wexford's dispositive
motion, Dr. Asresahegn Getachew provides an affidavit summarizing
the care provided to Mr. Reinhardt for his complaint of lower
back pain (ECF No. 15-5) as well as relevant medical records
(ECF No. 15-4). Wexford maintains that the conservative
course of care provided to Mr. Reinhardt and outlined below
does not support an Eighth Amendment claim. ECF No. 15.
Getachew acknowledges that Mr. Reinhardt has a history of
lower back pain with pain and numbness radiating to his right
leg and foot. ECF No. 15-5 at 1, ¶ 3. He states that the
February 10, 2017, x-ray “indicated mild degenerative
changes” which are “unremarkable and a natural
consequence of aging in all individuals.” Id.
at 2-3, ¶5; ECF No. 15-4 at 30 (x-ray report). The
doctor states that the cause of Mr. Reinhardt's
radiculopathy is unknown; he did not report trauma that
caused his lower back pain. ECF No. 15-5 at 3, ¶5. The
medical record, however, indicates that Mr. Reinhardt did
report that his back pain started approximately six months
before the initial encounter with a “twisting
motion” when “avoiding a big box that hit him on
the chest.” ECF No. 15-4 at 3 (Feb. 8, 2017 Provider
Sick Call). A test performed to determine if there is
inflammation of the sciatic nerve involving a straight leg
raising proved positive when performed on Mr. Reinhardt. ECF
No. 15-5 at 3, ¶5; ECF No. 15-4 at 8 (noting
“straight leg raise positive: 30 degrees of R
foot”). In addition, Mr. Reinhardt's lumbar spine
is “tender to palpation.” ECF No. 15-5 at 3,
attempts to address Mr. Reinhardt's pain have included
medications such as Cymbalta, Tegretol, Glucosamine
Chondroitin, and Mobic as well as ice, heat, and capsaicin
cream. ECF No. 15-5 at 3, ¶5. Further, Mr. Reinhardt was
provided with physical therapy sessions that included
strength and range of motion exercises. Id.; see
also ECF No. 15-4 at 32 (Dec. 15, 2017 Provider Sick
Call noting plan to order Medrol Dosepak and referral to
Physical Therapy); 35 (Dec. 15, 2017 referral to physical
therapy); 37, 42-46 (physical therapy sessions); 55 (May 20,
2018 referral to physical therapy); 60-64, 69-70 (physical
therapy sessions). Dr. Getachew acknowledges that the
treatment provided has not eradicated Mr. Reinhardt's
pain and states that “[i]t is possible that [he] may
never attain complete relief from his [lower back
pain].” ECF No. 15-5 at 3, ¶5.
to Dr. Getachew, Mr. Reinhardt has “lately been
requesting to be prescribed Neurontin” to address his
pain. Id. at ¶6, see also ECF No. 15-4
at 52 (May 20, 2018 Provider Sick Call, discussed
prescription for Tegretol in lieu of Neurontin “as this
is in the same class of meds as Neurontin”); 84 (Nov.
21, 2018 Provider Sick Call, noting discussion of
effectiveness of Neurontin in addressing neuropathic pain).
His requests have been denied because “Neurontin has
been deemed a drug of abuse, and increasing patterns of
overuse and abuse have been observed within DPSCS.” ECF
No. 15-5 at 3, ¶6. Dr. Getachew further explains that
“DPSCS has determined to eliminate its use for non-FDA
approved conditions absent exceptional
circumstances.” Id. Because Neurontin is
“FDA approved as an anticonvulsant and for treatment of
neuropathic pain (nerve pain) caused by herpes virus or
shingles” and as Mr. Reinhardt has neither a seizure
disorder nor nerve pain caused by herpes or shingles, his
condition does not warrant a prescription for Neurontin.
order for a bottom bunk assignment for six months was noted
during a visit that occurred on May 30, 2017. ECF No. 15-4 at
14. However, on September 22, 2017, four months after the
six-month order was allegedly issued, it is noted that Mr.
Reinhardt was “currently on top bunk and that is
exacerbating his pain.” Id. at 21. A one-year
order for bottom bunk status is noted as completed during
that encounter. Id. at 22 (“bottom bunk x 1 yr
ex: 9/22/2018). It is unclear whether the bottom bunk
assignment order was actually issued in May, or whether it
was not followed by correctional staff; Mr. Reinhardt does
not raise any allegations concerning this discrepancy.
Mr. Reinhardt's request for renewal of his bottom bunk
assignment submitted on September 17, 2018, Dr. Getachew
admits that “for unexplained reasons [Mr. Reinhardt]
was not seen by a provider until November 21, 2018.”
ECF No. 15-5 at 3, ¶8. The written record for the
November 21, 2018 encounter does not include any reference to
a bottom bunk assignment. Id., see also ECF
No. 15-4 at 84 (Nov. 21, 2018 Provider Sick Call for
medication renewal). Following that encounter up to and
including January 2, 2019, when Mr. Reinhardt was transferred
from WCI, no further sick call requests regarding bottom bunk
assignment were received from Mr. Reinhardt. Id.